QUESTION
I have two flats: at one the lease conditions are very strictly upheld, by both management company and lessee. Simply, if in the lease you can have it/do it and if not....then it is understood you cannot have it/do it.
At the other flat, on some covenants they are strict, but the lease clearly states, "no flower pot box or other item may be placed in the grounds, except where provided by the landlord". There are lots, of all colours, shapes and sizes, that some residents place where they like, as if in their own private back yard.
Querying this with the management company I am informed by them it is nice for residents to do gardening and we feel they add to the colour of the gardens.
I wrote to another management company asking for their steer on this matter. Their response was that all covenants are properly adhered to in the interests of good estate management.
What exactly is the point of paying good money to a solicitor to sign documentation for a leasehold flat only to meet this poor management. What they are saying is "we manage this place and we dictate the terms" treating residents as naughty children for daring to even query it.
What please, do you think of that and can you offer any advice?
ANSWER
Covenants such as those mentioned can be enforced by whoever has the benefit of them, usually the landlord or management company.
The managing agent merely acts on behalf of their client and, whilst they may have delegated authority to make decisions on enforcement, it is ultimately the responsibility of the beneficiary of the covenant to decide. Covenants do not have to be enforced as a general rule.
However, if the lessee is unhappy there is usually a mechanism within the lease to permit the lessee to compel the landlord or management company to enforce any covenants held against other lessees – which could include the removal of gardening equipment etc. – but the lessee would usually have to indemnify the landlord or management company in respect of legal costs.
Alternatively, if the lessee’s own lease allowed, action could be taken against the landlord or management company for breach of covenant – this would be lease specific, however, and the terms of any relevant lease would need to be considered with care.
In essence, the principles of good estate management differ depending on who is managing, the type of development etc. but the covenants are there to be enforced.
If the lessee is generally unhappy about management they could explore the Right to Manage option, set up a Recognised Tenants Association or look to enfranchise.
Phil Parkinson is Legal Director at JB Leitch Ltd
